PART 3 CONTRACT - Pmueinrip-binamarga.com

Republic of IndonesiaMinistry of Public WorksDirectorate General ofHighwayTHE EASTERN INDONESIA NATIONALROAD IMPROVEMENT PROJECT(EINRIP)LOAN NO: AIPRD-L002PACKAGE NO : ESB – 02PACKAGE NAME : PREFABRICATED STEEL BRIDGEMATERIALPART 3CONTRACT

Section VII. General Conditions of ContractTable of ClausesDefinitions .................................................................................................................................1Contract Documents ..................................................................................................................2Fraud and Corruption.................................................................................................................2Interpretation .............................................................................................................................3Language ...................................................................................................................................4Joint Venture, Consortium or Association ................................................................................5Eligibility...................................................................................................................................5Notices.......................................................................................................................................5Governing Law..........................................................................................................................5Settlement of Disputes...............................................................................................................5Inspections and Audit by the AusAID.......................................................................................6Scope of Supply.........................................................................................................................6Delivery and Documents ...........................................................................................................6Supplier’s Responsibilities ........................................................................................................6Contract Price ............................................................................................................................7Terms of Payment......................................................................................................................7Taxes and Duties .......................................................................................................................7Performance Security ................................................................................................................7Copyright...................................................................................................................................8Confidential Information ...........................................................................................................8Subcontracting...........................................................................................................................9Specifications and Standards.....................................................................................................9Packing and Documents ..........................................................................................................10Insurance..................................................................................................................................10Transportation..........................................................................................................................10Inspections and Tests...............................................................................................................10Liquidated Damages................................................................................................................12Warranty ..................................................................................................................................12Patent Indemnity......................................................................................................................13Limitation of Liability .............................................................................................................14Change in Laws and Regulations ............................................................................................14Force Majeure..........................................................................................................................15Change Orders and Contract Amendments .............................................................................15Extensions of Time..................................................................................................................16Termination .............................................................................................................................16Assignment ..............................................................................................................................17Export Restriction....................................................................................................................18

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of ContractSection VII. General Conditions of ContractDefinitions 1.1 The following words and expressions shall have the meaningshereby assigned to them:(a)(b)(c)(d)(e)(f)(g)(h)(i)(j)(k)(l)“AusAID” means the Australian Agency for InternationalDevelopment.“Contract” means the Contract Agreement entered intobetween the Purchaser and the Supplier, together with theContract Documents referred to therein, including allattachments, appendices, and all documents incorporatedby reference therein.“Contract Documents” means the documents listed in theContract Agreement, including any amendments thereto.“Contract Price” means the price payable to the Supplieras specified in the Contract Agreement, subject to suchadditions and adjustments thereto or deductionstherefrom, as may be made pursuant to the Contract.“Day” means calendar day.“Completion” means the fulfillment of the RelatedServices by the Supplier in accordance with the terms andconditions set forth in the Contract.“GCC” means the General Conditions of Contract.“Goods” means all of the commodities, raw material,machinery and equipment, and/or other materials that theSupplier is required to supply to the Purchaser under theContract.“Purchaser’s Country” is the country specified in theSpecial Conditions of Contract (SCC).“Purchaser” means the entity purchasing the Goods andRelated Services, as specified in the SCC.“Related Services” means the services incidental to thesupply of the goods, such as insurance, installation,training and initial maintenance and other suchobligations of the Supplier under the Contract.“SCC” means the Special Conditions of Contract.(m) “Subcontractor” means any natural person, private or3-1

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractgovernment entity, or a combination of the above, towhom any part of the Goods to be supplied or executionof any part of the Related Services is subcontracted bythe Supplier.(n)(o)“Supplier” means the natural person, private or governmententity, or a combination of the above, whose bid to performthe Contract has been accepted by the Purchaser and isnamed as such in the Contract Agreement.“The Project Site,” where applicable, means the placenamed in the SCC.ContractDocumentsFraud andCorruption2.1 Subject to the order of precedence set forth in the ContractAgreement, all documents forming the Contract (and all partsthereof) are intended to be correlative, complementary, andmutually explanatory. The Contract Agreement shall be read asa whole.3.1 If the Purchaser determines that the Supplier has engaged incorrupt, fraudulent, collusive, coercive or obstructive practices,in competing for or in executing the Contract, then thePurchaser may, after giving 14 days notice to the Supplier,terminate the Supplier's employment under the Contract andcancel the contract, and the provisions of Clause 35 shall applyas if such expulsion had been made under Sub-Clause 35.1.(a)For the purposes of this Sub-Clause:(i) “corrupt practice” 1 is the offering, giving,receiving or soliciting, directly or indirectly, ofanything of value to influence improperly theactions of another party;(ii) “fraudulent practice” 2 is any act or omission,including a misrepresentation, that knowingly orrecklessly misleads, or attempts to mislead, a partyto obtain a financial or other benefit or to avoid anobligation;1“another party” refers to a public official acting in relation to the procurement process or contractexecution]. In this context, “public official” includes AusAID staff and employees of other organizations takingor reviewing procurement decisions.2a “party” refers to a public official; the terms “benefit” and “obligation” relate to the procurement process orcontract execution; and the “act or omission” is intended to influence the procurement process or contractexecution.3-2

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contract(iii)(iv)(v)“collusive practice” 3 is an arrangement betweentwo or more parties designed to achieve animproper purpose, including to influenceimproperly the actions of another party;“coercive practice” 4 is impairing or harming, orthreatening to impair or harm, directly orindirectly, any party or the property of the party toinfluence improperly the actions of a party;“obstructive practice” is(aa) deliberately destroying, falsifying, alteringor concealing of evidence material to theinvestigation or making false statements toinvestigators in order to materially impede aAusAID investigation into allegations of acorrupt, fraudulent, coercive or collusivepractice; and/or threatening, harassing orintimidating any party to prevent it fromdisclosing its knowledge of matters relevantto the investigation or from pursuing theinvestigation; or(bb) acts intended to materially impede theexercise of the AusAID’s inspection andaudit rights provided for under Clause 11[Inspections and Audits by the AusAID].3.2 Should any employee of the Supplier be determined to haveengaged in corrupt, fraudulent, collusive, coercive, orobstructive practice during the purchase of the Goods, then thatemployee shall be removed.Interpretation 4.1 If the context so requires it, singular means plural and vice versa.4.2 Incoterms(a)(b)Unless inconsistent with any provision of the Contract,the meaning of any trade term and the rights andobligations of parties thereunder shall be as prescribed byIncoterms.The terms EXW, CIP, FCA, CFR and other similar terms,3“parties” refers to participants in the procurement process (including public officials) attempting to establishbid prices at artificial, non competitive levels.4a “party” refers to a participant in the procurement process or contract execution.3-3

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractwhen used, shall be governed by the rules prescribed inthe current edition of Incoterms specified in the SCC andpublished by the International Chamber of Commerce inParis, France.4.3 Entire AgreementThe Contract constitutes the entire agreement between thePurchaser and the Supplier and supersedes all communications,negotiations and agreements (whether written or oral) of theparties with respect thereto made prior to the date of Contract.4.4 AmendmentNo amendment or other variation of the Contract shall be validunless it is in writing, is dated, expressly refers to the Contract,and is signed by a duly authorized representative of each partythereto.4.5 Nonwaiver(a)(b)Subject to GCC Sub-Clause 4.5(b) below, no relaxation,forbearance, delay, or indulgence by either party inenforcing any of the terms and conditions of the Contractor the granting of time by either party to the other shallprejudice, affect, or restrict the rights of that party underthe Contract, neither shall any waiver by either party ofany breach of Contract operate as waiver of anysubsequent or continuing breach of Contract.Any waiver of a party’s rights, powers, or remedies underthe Contract must be in writing, dated, and signed by anauthorized representative of the party granting suchwaiver, and must specify the right and the extent to whichit is being waived.4.6 SeverabilityIf any provision or condition of the Contract is prohibited orrendered invalid or unenforceable, such prohibition, invalidityor unenforceability shall not affect the validity or enforceabilityof any other provisions and conditions of the Contract.Language 5.1 The Contract as well as all correspondence and documentsrelating to the Contract exchanged by the Supplier and thePurchaser, shall be written in the language specified in theSCC. Supporting documents and printed literature that arepart of the Contract may be in another language provided theyare accompanied by an accurate translation of the relevant3-4

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractpassages in the language specified, in which case, for purposesof interpretation of the Contract, this translation shall govern.5.2 The Supplier shall bear all costs of translation to the governinglanguage and all risks of the accuracy of such translation, fordocuments provided by the Supplier.Joint Venture,Consortium orAssociationEligibility6.1 If the Supplier is a joint venture, consortium, or association, all ofthe parties shall be jointly and severally liable to the Purchaser forthe fulfillment of the provisions of the Contract and shalldesignate one party to act as a leader with authority to bind thejoint venture, consortium, or association. The composition or theconstitution of the joint venture, consortium, or association shallnot be altered without the prior consent of the Purchaser.7.1 The Supplier and its Subcontractors shall have the nationality ofan eligible country. A Supplier or Subcontractor shall bedeemed to have the nationality of a country if it is a citizen orconstituted, incorporated, or registered, and operates inconformity with the provisions of the laws of that country.7.2 All Goods and Related Services to be supplied under theContract and financed by the AusAID shall have their origin inEligible Countries. For the purpose of this Clause, origin meansthe country where the goods have been grown, mined,cultivated, produced, manufactured, or processed; or throughmanufacture, processing, or assembly, another commerciallyrecognized article results that differs substantially in its basiccharacteristics from its components.Notices 8.1 Any notice given by one party to the other pursuant to theContract shall be in writing to the address specified in theSCC. The term “in writing” means communicated in writtenform with proof of receipt.8.2 A notice shall be effective when delivered or on the notice’seffective date, whichever is later.Governing Law 9.1 The Contract shall be governed by and interpreted inaccordance with the laws of the Purchaser’s Country, unlessotherwise specified in the SCC.Settlement ofDisputes10.1 The Purchaser and the Supplier shall make every effort toresolve amicably by direct informal negotiation anydisagreement or dispute arising between them under or inconnection with the Contract.10.2 If, after twenty-eight (28) days, the parties have failed to3-5

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractresolve their dispute or difference by such mutual consultation,then either the Purchaser or the Supplier may give notice to theother party of its intention to commence arbitration, ashereinafter provided, as to the matter in dispute, and noarbitration in respect of this matter may be commenced unlesssuch notice is given. Any dispute or difference in respect ofwhich a notice of intention to commence arbitration has beengiven in accordance with this Clause shall be finally settled byarbitration. Arbitration may be commenced prior to or afterdelivery of the Goods under the Contract. Arbitrationproceedings shall be conducted in accordance with the rules ofprocedure specified in the SCC.10.3 Notwithstanding any reference to arbitration herein,(a)(b)the parties shall continue to perform their respectiveobligations under the Contract unless they otherwise agree;andthe Purchaser shall pay the Supplier any monies due theSupplier.Inspections andAudit by theAusAIDScope of SupplyDelivery andDocumentsSupplier’sResponsibilities11.1 The Supplier shall permit the AusAID and/or persons appointedby the AusAID to inspect the Supplier’s offices and/or theaccounts and records of the Supplier and its sub-contractorsrelating to the performance of the Contract, and to have suchaccounts and records audited by auditors appointed by theAusAID if required by the AusAID. The Supplier’s attention isdrawn to Clause 3, which provides, inter alia, that acts intended tomaterially impede the exercise of the AusAID’s inspection andaudit rights provided for under Sub-Clause 11.1 constitute aprohibited practice subject to contract termination (as well as to adetermination of ineligibility under the Procurement Guidelines).12.1 The Goods and Related Services to be supplied shall be asspecified in the Schedule of Requirements.13.1 Subject to GCC Sub-Clause 33.1, the Delivery of the Goods andCompletion of the Related Services shall be in accordance withthe Delivery and Completion Schedule specified in the Scheduleof Requirements. The details of shipping and other documents tobe furnished by the Supplier are specified in the SCC.14.1 The Supplier shall supply all the Goods and Related Servicesincluded in the Scope of Supply in accordance with GCCClause 12, and the Delivery and Completion Schedule, as perGCC Clause 13.3-6

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of ContractContract PriceTerms of Payment15.1 Prices charged by the Supplier for the Goods supplied and theRelated Services performed under the Contract shall not varyfrom the prices quoted by the Supplier in its bid, with theexception of any price adjustments authorized in the SCC.16.1 The Contract Price, including any Advance Payments, ifapplicable, shall be paid as specified in the SCC.16.2 The Supplier’s request for payment shall be made to thePurchaser in writing, accompanied by invoices describing, asappropriate, the Goods delivered and Related Servicesperformed, and by the documents submitted pursuant to GCCClause 13 and upon fulfillment of all other obligationsstipulated in the Contract.16.3 Payments shall be made promptly by the Purchaser, but in nocase later than sixty (60) days after submission of an invoice orrequest for payment by the Supplier, and after the Purchaserhas accepted it.16.4 The currencies in which payments shall be made to theSupplier under this Contract shall be those in which the bidprice is expressed.16.5 In the event that the Purchaser fails to pay the Supplier anypayment by its due date or within the period set forth in theSCC, the Purchaser shall pay to the Supplier interest on theamount of such delayed payment at the rate shown in the SCC,for the period of delay until payment has been made in full,whether before or after judgment or arbitrage award.Taxes and Duties17.1 For goods manufactured outside the Purchaser’s Country, theSupplier shall be entirely responsible for all taxes, stampduties, license fees, and other such levies imposed outside thePurchaser’s Country.17.2 For goods Manufactured within the Purchaser’s country, theSupplier shall be entirely responsible for all taxes, duties,license fees, etc., incurred until delivery of the contractedGoods to the Purchaser.17.3 If any tax exemptions, reductions, allowances or privileges maybe available to the Supplier in the Purchaser’s Country, thePurchaser shall use its best efforts to enable the Supplier tobenefit from any such tax savings to the maximum allowableextent.Performance18.1 If required as specified in the SCC, the Supplier shall, within3-7

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of ContractSecuritytwenty-eight (28) days of the notification of contract award,provide a performance security for the performance of theContract in the amount specified in the SCC.18.2 The proceeds of the Performance Security shall be payable tothe Purchaser as compensation for any loss resulting from theSupplier’s failure to complete its obligations under theContract.18.3 As specified in the SCC, the Performance Security, if required,shall be denominated in the currency(ies) of the Contract, or ina freely convertible currency acceptable to the Purchaser; andshall be in one of the format stipulated by the Purchaser in theSCC, or in another format acceptable to the Purchaser.18.4 The Performance Security shall be discharged by the Purchaserand returned to the Supplier not later than twenty-eight (28)days following the date of Completion of the Supplier’sperformance obligations under the Contract, including anywarranty obligations, unless specified otherwise in the SCC.CopyrightConfidentialInformation19.1 The copyright in all drawings, documents, and other materialscontaining data and information furnished to the Purchaser bythe Supplier herein shall remain vested in the Supplier, or, ifthey are furnished to the Purchaser directly or through theSupplier by any third party, including suppliers of materials,the copyright in such materials shall remain vested in suchthird party20.1 The Purchaser and the Supplier shall keep confidential andshall not, without the written consent of the other party hereto,divulge to any third party any documents, data, or otherinformation furnished directly or indirectly by the other partyhereto in connection with the Contract, whether suchinformation has been furnished prior to, during or followingcompletion or termination of the Contract. Notwithstandingthe above, the Supplier may furnish to its Subcontractor suchdocuments, data, and other information it receives from thePurchaser to the extent required for the Subcontractor toperform its work under the Contract, in which event theSupplier shall obtain from such Subcontractor an undertakingof confidentiality similar to that imposed on the Supplier underGCC Clause 20.20.2 The Purchaser shall not use such documents, data, and otherinformation received from the Supplier for any purposesunrelated to the contract. Similarly, the Supplier shall not use3-8

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractsuch documents, data, and other information received from thePurchaser for any purpose other than the performance of theContract.20.3 The obligation of a party under GCC Sub-Clauses 20.1 and20.2 above, however, shall not apply to information that:(a)(b)(c)(d)the Purchaser or Supplier need to share with the AusAIDor other institutions participating in the financing of theContract;now or hereafter enters the public domain through nofault of that party;can be proven to have been possessed by that party at thetime of disclosure and which was not previouslyobtained, directly or indirectly, from the other party; orotherwise lawfully becomes available to that party from athird party that has no obligation of confidentiality.20.4 The above provisions of GCC Clause 20 shall not in any waymodify any undertaking of confidentiality given by either ofthe parties hereto prior to the date of the Contract in respect ofthe Supply or any part thereof.20.5 The provisions of GCC Clause 20 shall survive completion ortermination, for whatever reason, of the Contract.Subcontracting21.1 The Supplier shall notify the Purchaser in writing of allsubcontracts awarded under the Contract if not alreadyspecified in the bid. Such notification, in the original bid orlater shall not relieve the Supplier from any of its obligations,duties, responsibilities, or liability under the Contract.21.2 Subcontracts shall comply with the provisions of GCC Clauses3 and 7.Specifications andStandards22.1 Technical Specifications and Drawings(a)The Goods and Related Services supplied under thisContract shall conform to the technical specifications andstandards mentioned in Section VI, Schedule ofRequirements and, when no applicable standard ismentioned, the standard shall be equivalent or superior tothe official standards whose application is appropriate tothe Goods’ country of origin.(b)The Supplier shall be entitled to disclaim responsibility3-9

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractfor any design, data, drawing, specification or otherdocument, or any modification thereof provided ordesigned by or on behalf of the Purchaser, by giving anotice of such disclaimer to the Purchaser.(c)Wherever references are made in the Contract to codesand standards in accordance with which it shall beexecuted, the edition or the revised version of such codesand standards shall be those specified in the Schedule ofRequirements. During Contract execution, any changes inany such codes and standards shall be applied only afterapproval by the Purchaser and shall be treated inaccordance with GCC Clause 33.Packing andDocuments23.1 The Supplier shall provide such packing of the Goods as isrequired to prevent their damage or deterioration during transitto their final destination, as indicated in the Contract. Duringtransit, the packing shall be sufficient to withstand, withoutlimitation, rough handling and exposure to extremetemperatures, salt and precipitation, and open storage. Packingcase size and weights shall take into consideration, whereappropriate, the remoteness of the goods’ final destination andthe absence of heavy handling facilities at all points in transit.23.2 The packing, marking, and documentation within and outsidethe packages shall comply strictly with such specialrequirements as shall be expressly provided for in the Contract,including additional requirements, if any, specified in the SCC,and in any other instructions ordered by the Purchaser.InsuranceTransportationInspections andTests24.1 Unless otherwise specified in the SCC, the Goods suppliedunder the Contract shall be fully insured—in a freelyconvertible currency from an eligible country—against loss ordamage incidental to manufacture or acquisition,transportation, storage, and delivery, in accordance with theapplicable Incoterms or in the manner specified in the SCC.25.1 Unless otherwise specified in the SCC, responsibility forarranging transportation of the Goods shall be in accordancewith the specified Incoterms.26.1 The Supplier shall at its own expense and at no cost to thePurchaser carry out all such tests and/or inspections of theGoods and Related Services as are specified in the SCC.26.2 The inspections and tests may be conducted on the premises ofthe Supplier or its Subcontractor, at point of delivery, and/or at3-10

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractthe Goods’ final destination, or in another place in thePurchaser’s Country as specified in the SCC. Subject to GCCSub-Clause 26.3, if conducted on the premises of the Supplieror its Subcontractor, all reasonable facilities and assistance,including access to drawings and production data, shall befurnished to the inspectors at no charge to the Purchaser.26.3 The Purchaser or its designated representative shall be entitledto attend the tests and/or inspections referred to in GCC Sub-Clause 26.2, provided that the Purchaser bear all of its owncosts and expenses incurred in connection with suchattendance including, but not limited to, all traveling and boardand lodging expenses.26.4 Whenever the Supplier is ready to carry out any such test andinspection, it shall give a reasonable advance notice, includingthe place and time, to the Purchaser. The Supplier shall obtainfrom any relevant third party or manufacturer any necessarypermission or consent to enable the Purchaser or its designatedrepresentative to attend the test and/or inspection.26.5 The Purchaser may require the Supplier to carry out any testand/or inspection not required by the Contract but deemednecessary to verify that the characteristics and performance ofthe Goods comply with the technical specifications codes andstandards under the Contract, provided that the Supplier’sreasonable costs and expenses incurred in the carrying out ofsuch test and/or inspection shall be added to the Contract Price.Further, if such test and/or inspection impedes the progress ofmanufacturing and/or the Supplier’s performance of its otherobligations under the Contract, due allowance will be made inrespect of the Delivery Dates and Completion Dates and theother obligations so affected.26.6 The Supplier shall provide the Purchaser with a report of theresults of any such test and/or inspection.26.7 The Purchaser may reject any Goods or any part thereof thatfail to pass any test and/or inspection or do not conform to thespecifications. The Supplier shall either rectify or replace suchrejected Goods or parts thereof or make alterations necessaryto meet the specifications at no cost to the Purchaser, and shallrepeat the test and/or inspection, at no cost to the Purchaser,upon giving a notice pursuant to GCC Sub-Clause 26.4.26.8 The Supplier agrees that neither the execution of a test and/orinspection of the Goods or any part thereof, nor the attendanceby the Purchaser or its representative, nor the issue of any3-11

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractreport pursuant to GCC Sub-Clause 26.6, shall release theSupplier from any warranties or other obligations under theContract.LiquidatedDamagesWarranty27.1 Except as provided under GCC Clause 32, if the Supplier failsto deliver any or all of the Goods by the Date(s) of delivery orperform the Related Services within the period specified in theContract, the Purchaser may without prejudice to all its otherremedies under the Contract, deduct from the Contract Price,as liquidated damages, a sum equivalent to the percentagespecified in the SCC of the delivered price of the delayedGoods or unperformed Services for each week or part thereofof delay until actual delivery or performance, up to a maximumdeduction of the percentage specified in those SCC. Once themaximum is reached, the Purchaser may terminate the Contractpursuant to GCC Clause 35.28.1 The Supplier warrants that all the Goods are new, unused, andof the most recent or current models, and that they incorporateall recent improvements in design and materials, unlessprovided otherwise in the Contract.28.2 Subject to GCC Sub-Clause 22.1(b), the Supplier furtherwarrants that the Goods shall be free from defects arising fromany act or omission of the Supplier or arising from design,materials, and workmanship, under normal use in theconditions prevailing in the country of final destination.28.3 Unless otherwise specified in the SCC, the warranty shallremain valid for twelve (12) months after the Goods, or anyportion thereof as the case may be, have been delivered to andaccepted at the final destination indicated in the SCC, or foreighteen (18) months after the date of shipment from the portor place of loading in the country of origin, whichever periodconcludes earlier.28.4 The Purchaser shall give notice to the Supplier stating thenature of any such defects together with all available evidencethereof, promptly following the discovery thereof. ThePurchaser shall afford all reasonable opportunity for theSupplier to inspect such defects.28.5 Upon receipt of such notice, the Supplier shall, within theperiod specified in the SCC, expeditiously repair or replace thedefective Goods or parts thereof, at no cost to the Purchaser.28.6 If having been notified, the Supplier fails to remedy the defectwithin the period specified in the SCC, the Purchaser may3-12

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractproceed to take within a reasonable period such remedialaction as may be necessary, at the Supplier’s risk and expenseand without prejudice to any other rights which the Purchasermay have against the Supplier under the Contract.Patent Indemnity29.1 The Supplier shall, subject to the Purchaser’s compliance withGCC Sub-Clause 29.2, indemnify and hold harmless thePurchaser and its employees and officers from and against anyand all suits, actions or administrative proceedings, claims,demands, losses, damages, costs, and expenses of any nature,including attorney’s fees and expenses, which the Purchasermay suffer as a result of any infringement or allegedinfringement of any patent, utility model, registered design,trademark, copyright, or other intellectual property rightregistered or otherwise existing at the date of the Contract byreason of:(a)(b)the installation of the Goods by the Supplier or the use ofthe Goods in the country where the Site is located; andthe sale in any country of the products produced by theGoods.Such indemnity shall not cover any use of the Goods or anypart thereof other than for the purpose indicated by or to bereasonably inferred from the Contract, neither anyinfringement resulting from the use of the Goods or any partthereof, or any products produced thereby in association orcombination with any other equipment, plant, or materials notsupplied by the Supplier, pursuant to the Contract.29.2 If any proceedings are brought or any claim is made against thePurchaser arising out of the matters referred to in GCC Sub-Clause 29.1, the Purchaser shall promptly give the Supplier anotice thereof, and the Supplier may at its own expense and inthe Purchaser’s name conduct such proceedings or claim andany negotiations for the settlement of any such proceedings orclaim.29.3 If the Supplier fails to notify the Purchaser within twenty-eight(28) days after receipt of such notice that it intends to conductany such proceedings or claim, then the Purchaser shall be freeto conduct the same on its own behalf.29.4 The Purchaser shall, at the Supplier’s request, afford allavailable assistance to the Supplier in conducting suchproceedings or claim, and shall be reimbursed by the Supplier3-13

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractfor all reasonable expenses incurred in so doing.29.5 The Purchaser shall indemnify and hold harmless the Supplierand its employees, officers, and Subcontractors from andagainst any and all suits, actions or administrative proceedings,claims, demands, losses, damages, costs, and expenses of anynature, including attorney’s fees and expenses, which theSupplier may suffer as a result of any infringement or allegedinfringement of any patent, utility model, registered design,trademark, copyright, or other intellectual property rightregistered or otherwise existing at the date of the Contractarising out of or in connection with any design, data, drawing,specification, or other documents or materials provided ordesigned by or on behalf of the Purchaser.Limitation ofLiability30.1 Except in cases of criminal negligence or willful misconduct,(a)the Supplier shall not be liable to the Purchaser, whetherin contract, tort, or otherwise, for any indirect orconsequential loss or damage, loss of use, loss ofproduction, or loss of profits or interest costs, providedthat this exclusion shall not apply to any obligation of theSupplier to pay liquidated damages to the Purchaser and(b) the aggregate liability of the Supplier to the Purchaser,whether under the Contract, in tort or otherwise, shall notexceed the total Contract Price, provided that thislimitation shall not apply to the cost of repairing orreplacing defective equipment, or to any obligation of thesupplier to indemnify the purchaser with respect to patentinfringementChange in Lawsand Regulations31.1 Unless otherwise specified in the Contract, if after the date of28 days prior to date of Bid submission, any law, regulation,ordinance, order or bylaw having the force of law is enacted,promulgated, abrogated, or changed in the place of thePurchaser’s country where the Site is located (which shall bedeemed to include any change in interpretation or applicationby the competent authorities) that subsequently affects theDelivery Date and/or the Contract Price, then such DeliveryDate and/or Contract Price shall be correspondingly increasedor decreased, to the extent that the Supplier has thereby beenaffected in the performance of any of its obligations under theContract. Notwithstanding the foregoing, such additional orreduced cost shall not be separately paid or credited if the samehas already been accounted for in the price adjustmentprovisions where applicable, in accordance with GCC Clause3-14

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contract15.Force Majeure32.1 The Supplier shall not be liable for forfeiture of itsPerformance Security, liquidated damages, or termination fordefault if and to the extent that its delay in performance orother failure to perform its obligations under the Contract is theresult of an event of Force Majeure.32.2 For purposes of this Clause, “Force Majeure” means an eventor situation beyond the control of the Supplier that is notforeseeable, is unavoidable, and its origin is not due tonegligence or lack of care on the part of the Supplier. Suchevents may include, but not be limited to, acts of the Purchaserin its sovereign capacity, wars or revolutions, fires, floods,epidemics, quarantine restrictions, and freight embargoes.32.3 If a Force Majeure situation arises, the Supplier shall promptlynotify the Purchaser in writing of such condition and the causethereof. Unless otherwise directed by the Purchaser in writing,the Supplier shall continue to perform its obligations under theContract as far as is reasonably practical, and shall seek allreasonable alternative means for performance not prevented bythe Force Majeure event.Change Orders andContractAmendments33.1 The Purchaser may at any time order the Supplier throughnotice in accordance GCC Clause 8, to make changes withinthe general scope of the Contract in any one or more of thefollowing:(a)(b)(c)(d)drawings, designs, or specifications, where Goods to befurnished under the Contract are to be specificallymanufactured for the Purchaser;the method of shipment or packing;the place of delivery; andthe Related Services to be provided by the Supplier.33.2 If any such change causes an increase or decrease in the costof, or the time required for, the Supplier’s performance of anyprovisions under the Contract, an equitable adjustment shall bemade in the Contract Price or in the Delivery/CompletionSchedule, or both, and the Contract shall accordingly beamended. Any claims by the Supplier for adjustment underthis Clause must be asserted within twenty-eight (28) daysfrom the date of the Supplier’s receipt of the Purchaser’s3-15

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractchange order.33.3 Prices to be charged by the Supplier for any Related Servicesthat might be needed but which were not included in theContract shall be agreed upon in advance by the parties andshall not exceed the prevailing rates charged to other parties bythe Supplier for similar services.33.4 Subject to the above, no variation in or modification of theterms of the Contract shall be made except by writtenamendment signed by the parties.Extensions of Time34.1 If at any time during performance of the Contract, the Supplieror its subcontractors should encounter conditions impedingtimely delivery of the Goods or completion of Related Servicespursuant to GCC Clause 13, the Supplier shall promptly notifythe Purchaser in writing of the delay, its likely duration, and itscause. As soon as practicable after receipt of the Supplier’snotice, the Purchaser shall evaluate the situation and may at itsdiscretion extend the Supplier’s time for performance, in whichcase the extension shall be ratified by the parties byamendment of the Contract.34.2 Except in case of Force Majeure, as provided under GCCClause 32, a delay by the Supplier in the performance of itsDelivery and Completion obligations shall render the Supplierliable to the imposition of liquidated damages pursuant to GCCClause 26, unless an extension of time is agreed upon, pursuantto GCC Sub-Clause 34.1.Termination35.1 Termination for Default(a)The Purchaser, without prejudice to any other remedy forbreach of Contract, by written notice of default sent tothe Supplier, may terminate the Contract in whole or inpart:(i)if the Supplier fails to deliver any or all of theGoods within the period specified in the Contract,or within any extension thereof granted by thePurchaser pursuant to GCC Clause 34;(ii) if the Supplier fails to perform any other obligationunder the Contract; or(iii) if the Supplier, in the judgment of the Purchaser hasengaged in fraud and corruption, as defined in GCCClause 3, in competing for or in executing the3-16

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of ContractContract.(b)In the event the Purchaser terminates the Contract inwhole or in part, pursuant to GCC Clause 35.1(a), thePurchaser may procure, upon such terms and in suchmanner as it deems appropriate, Goods or RelatedServices similar to those undelivered or not performed,and the Supplier shall be liable to the Purchaser for anyadditional costs for such similar Goods or RelatedServices. However, the Supplier shall continueperformance of the Contract to the extent not terminated.35.2 Termination for Insolvency.(a)The Purchaser may at any time terminate the Contract bygiving notice to the Supplier if the Supplier becomesbankrupt or otherwise insolvent. In such event,termination will be without compensation to the Supplier,provided that such termination will not prejudice or affectany right of action or remedy that has accrued or willaccrue thereafter to the Purchaser35.3 Termination for Convenience.(a)(b)The Purchaser, by notice sent to the Supplier, mayterminate the Contract, in whole or in part, at any timefor its convenience. The notice of termination shallspecify that termination is for the Purchaser’sconvenience, the extent to which performance of theSupplier under the Contract is terminated, and the dateupon which such termination becomes effective.The Goods that are complete and ready for shipmentwithin twenty-eight (28) days after the Supplier’s receiptof notice of termination shall be accepted by thePurchaser at the Contract terms and prices. For theremaining Goods, the Purchaser may elect:(i)(ii)to have any portion completed and delivered at theContract terms and prices; and/orto cancel the remainder and pay to the Supplier anagreed amount for partially completed Goods andRelated Services and for materials and partspreviously procured by the Supplier.Assignment36.1 Neither the Purchaser nor the Supplier shall assign, in whole orin part, their obligations under this Contract, except with prior3-17

Bidding Documents for ESB-02Part 3 – ContractSection VII. General Conditions of Contractwritten consent of the other party.Export Restriction37.1 Notwithstanding any obligation under the Contract to completeall export formalities, any export restrictions attributable to thePurchaser, to the country of the Purchaser, or to the use of theproducts/goods, systems or services to be supplied, which arisefrom trade regulations from a country supplying thoseproducts/goods, systems or services, and which substantiallyimpede the Supplier from meeting its obligations under theContract, shall release the Supplier from the obligation toprovide deliveries or services, always provided, however, thatthe Supplier can demonstrate to the satisfaction of thePurchaser and of the AusAID that it has completed allformalities in a timely manner, including applying for permits,authorizations and licenses necessary for the export of theproducts/goods, systems or services under the terms of theContract. Termination of the Contract on this basis shall be forthe Purchaser’s convenience pursuant to Sub-Clause 35.3.3-18

Bidding Documents for ESB-02Part 3 – ContractSection VIII. Special Conditions of ContractSection VIII. Special Conditions of ContractThe following Special Conditions of Contract (SCC) shall supplement and / or amend theGeneral Conditions of Contract (GCC). Whenever there is a conflict, the provisions hereinshall prevail over those in the GCC.[The Purchaser shall select insert the appropriate wording using the samples below orother acceptable wording, and delete the text in italics]GCC 1.1(j)GCC 1.1(k)GCC 1.1 (q)GCC 4.2 (a)The Purchaser’s country is: Republic of IndonesiaThe Purchaser is: Pejabat Pembuat Komitmen Kegiatan PengadaanPeralatan/Bahan Jalan dan JembatanThe Project Site(s)/Final Destination(s) herein termed “Point of Delivery”is/are: Gudang Direktorat Jenderal Bina Marga, Jl. Pahlawan No.25A, Citeureup-Bogor, West Java.The meaning of the trade terms shall be as prescribed by Incoterms.GCC 4.2 (b) The version edition of Incoterms shall be 2000.GCC 5.1GCC 8.1GCC 9.1GCC 10.2The language shall be: EnglishFor notices, the Purchaser’s address shall be:Attention: Pejabat Pembuat Komitmen Kegiatan PengadaanPeralatan/Bahan Jalan dan JembatanFloor/ Room number: Sapta Taruna Building, 8 th FloorStreet Address: Jl. Pattimura No.20City: Jakarta SelatanZIP Code: 12110Country: IndonesiaTelephone: 62-21-7246019Facsimile number: 62-21-7246019 or 62-21-7244353Electronic mail address: bahan.peralatan@yahoo.co.idThe governing law shall be the law of: Republic of IndonesiaThe rules of procedure for arbitration proceedings pursuant to GCCClause 10.2 shall be as follows:(a) Contract with foreign Supplier :All disputes arising in connection with the present Contract shall be3-19

Bidding Documents for ESB-02Part 3 – ContractSection VIII. Special Conditions of Contractfinally settled under the Rules of Conciliation and Arbitration of theInternational Chamber of Commerce by one or more arbitratorsappointed in accordance with said Rules.(b) Contracts with Supplier national of the Purchaser’s country:In the case of a dispute between the Purchaser and a Supplier who isa national of the Purchaser’s country, the dispute shall be referred toarbitration in accordance with the laws of the Purchaser’s country,under the rules of arbitration of Badan Arbitrase Nasional Indonesia(BANI).GCC 13.1GCC 15.2GCC 16.1Details of Shipping and other Documents to be furnished by the Supplierare negotiable bill of lading, a non-negotiable sea way bill, an airway bill,a railway consignment note, a road consignment note, insurancecertificate, Supplier’s warranty certificate, inspection certificate issued bynominated inspection agency, as appropriate for the method of delivery.The above documents shall be received by the Purchaser before arrival ofthe Goods and, if not received, the Supplier will be responsible for anyconsequent expensesThe prices charged for the Goods supplied and the related Servicesperformed shall not be adjustable.The method and conditions of payment to be made to the Supplier underthis Contract shall be as follows:Payment for Goods supplied from abroad:Payment of foreign currency portion shall be made in ( )(i)Advance Payment: Twenty (20) percent of the Contract Price shallbe paid within thirty (30) days of signing of the Contract, and uponsubmission of claim and a bank guarantee for equivalent amountvalid until the Goods are delivered and in the form provided in thebidding documents or another form acceptable to the Purchaser.(ii) On Shipment: Seventy (70) percent of the Contract Price of theGoods shipped shall be paid through irrevocable confirmed letter ofcredit opened in favor of the Supplier in a bank in its country, uponsubmission of documents specified in GCC Clause 12.(iii) On Acceptance: Ten (10) percent of the Contract Price of Goodsreceived shall be paid within thirty (30) days of receipt of the Goodsupon submission of claim supported by the acceptance certificateissued by the Purchaser.Payment of local currency portion shall be made in Indonesian Rupiah3-20

Bidding Documents for ESB-02Part 3 – ContractSection VIII. Special Conditions of Contractwithin thirty (30) days of presentation of claim supported by a certificatefrom the Purchaser declaring that the Goods have been delivered and thatall other contracted Services have been performed.Payment for Goods and Services supplied from within thePurchaser’s country:Payment for Goods and Services supplied from within the Purchaser’scountry shall be made in Indonesian Rupiah, as follows:(i)Advance Payment: Twenty (20) percent of the Contract Price shallbe paid within thirty (30) days of signing of the Contract against asimple receipt and a bank guarantee for the equivalent amount andin the form provided in the bidding documents or another formacceptable to the Purchaser.(ii) On Delivery: Seventy (70) percent of the Contract Price shall bepaid on receipt of the Goods and upon submission of the documentsspecified in GCC Clause 13.(iii) On Acceptance: The remaining ten (10) percent of the ContractPrice shall be paid to the Supplier within thirty (30) days after thedate of the acceptance certificate for the respective delivery issuedby the Purchaser.GCC 16.5GCC 18.1GCC 18.3GCC 18.4GCC 23.2GCC 24.1The payment-delay period after which the Purchaser shall pay interest tothe supplier shall be 60 days.The interest rate that shall be applied is the annual rate of threepercentage points above the discount rate of the Bank of Indonesia ofthe currency of payment.A Performance Security shall be requiredThe amount of the Performance Security shall be 10% of Contract Price.The Performance Security shall be in the form of a Unconditional BankGuarantee and shall be denominated in the currencies of payment ofthe Contract, in accordance with their portions of the Contract PriceNot ApplicableThe packing, marking and documentation within and outside the packagesshall be specified in Section VI. Supply Requirements -Specifications: Article 4.01 Identification and Packing.The insurance coverage shall be as specified in the Incoterms.3-21

Bidding Documents for ESB-02Part 3 – ContractSection VIII. Special Conditions of ContractGCC 25.1GCC 26.1GCC 26.2GCC 27.1Responsibility for transportation of the Goods shall be as specified in theIncoterms.The inspections and tests shall be specified in Section VI. SupplyRequirements – Specifications: Article 3.08 Inspections and TestingThe Inspections and tests shall be conducted at: _________The liquidated damage shall be one seventh of one percent (0.70 %) ofthe Contract Price per week.GCC 27.1 The maximum amount of liquidated damages shall be: ten (10) %GCC 28.3GCC 28.5The period of validity of the Warranty shall be: 360 days from the date offinal delivery.For purposes of the Warranty, the place(s) of final destination(s) shall bethe location of erection of the bridgeThe period for repair or replacement shall be: 360 days.3-22

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsSection IX. Contract FormsTable of Forms1. Contract Agreement.............................................................................................................242. Performance Security ..........................................................................................................263. Bank Guarantee for Advance Payment ...............................................................................303-23

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsContract Agreement[The successful Bidder shall fill in this form in accordance with the instructions indicated]THIS CONTRACT AGREEMENT is madethe [ insert: number ] day of [ insert: month ], [ insert: year ].BETWEEN(1) [ insert complete name of Purchaser ], a [ insert description of type of legalentity, for example, an agency of the Ministry of .... of the Government of{ insert name of Country of Purchaser }, or corporation incorporated underthe laws of { insert name of Country of Purchaser } ] and having its principalplace of business at [ insert address of Purchaser ] (hereinafter called “thePurchaser”), and(2) [ insert name of Supplier ], a corporation incorporated under the laws of[ insert: country of Supplier ] and having its principal place of business at[ insert: address of Supplier ] (hereinafter called “the Supplier”).WHEREAS the Purchaser invited bids for certain Goods and ancillary services, viz., [insertbrief description of Goods and Services] and has accepted a Bid by the Supplier for the supplyof those Goods and Services in the sum of [insert Contract Price in words and figures,expressed in the Contract currency(ies) ] (hereinafter called “the Contract Price”).NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:1. In this Agreement words and expressions shall have the same meanings as arerespectively assigned to them in the Conditions of Contract referred to.2. The following documents shall constitute the Contract between the Purchaser and theSupplier, and each shall be read and construed as an integral part of the Contract:(a)(b)(c)(d)(e)(f)(g)This Contract AgreementSpecial Conditions of ContractGeneral Conditions of ContractTechnical Requirements (including Schedule of Requirements and TechnicalSpecifications)The Supplier’s Bid and original Price SchedulesThe Purchaser’s Notification of Award[Add here any other document(s)]3-24

Bidding Documents for ESB-02Part 3 – ContractSection VIII. Special Conditions of Contract3. This Contract shall prevail over all other Contract documents. In the event of anydiscrepancy or inconsistency within the Contract documents, then the documents shallprevail in the order listed above.4. In consideration of the payments to be made by the Purchaser to the Supplier ashereinafter mentioned, the Supplier hereby covenants with the Purchaser to provide theGoods and Services and to remedy defects therein in conformity in all respects with theprovisions of the Contract.5. The Purchaser hereby covenants to pay the Supplier in consideration of the provision ofthe Goods and Services and the remedying of defects therein, the Contract Price or suchother sum as may become payable under the provisions of the Contract at the times andin the manner prescribed by the Contract.IN WITNESS whereof the parties hereto have caused this Agreement to be executed inaccordance with the laws of [insert the name of the Contract governing law country] on theday, month and year indicated above.For and on behalf of the PurchaserSigned: [insert signature]in the capacity of [ insert title or other appropriate designation ]in the presence of [insert identification of official witness]For and on behalf of the SupplierSigned: [insert signature of authorized representative(s) of the Supplier]in the capacity of [ insert title or other appropriate designation ]in the presence of [ insert identification of official witness]3-25

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsPerformance SecurityOption 1: with following the rules of ICC No.458[The bank, as requested by the successful Bidder, shall fill in this form in accordance with theinstructions indicated]Date: [insert date (as day, month, and year) of Bid Submission]ICB No. and title: [insert no. and title of bidding process]Bank’s Branch or Office: [insert complete name of Guarantor]Beneficiary: [insert complete name of Purchaser]PERFORMANCE GUARANTEE No.:[insert Performance Guarantee number]We have been informed that [insert complete name of Supplier] (hereinafter called "theSupplier") has entered into Contract No. [insert number] dated [insert day and month], [insertyear] with you, for the supply of [description of Goods and related Services] (hereinaftercalled "the Contract").Furthermore, we understand that, according to the conditions of the Contract, a PerformanceGuarantee is required.At the request of the Supplier, we hereby irrevocably undertake to pay you any sum(s) notexceeding [insert amount(s 5 ) in figures and words] upon receipt by us of your first demand inwriting declaring the Supplier to be in default under the Contract, without cavil or argument,or your needing to prove or to show grounds or reasons for your demand or the sum specifiedtherein.This Guarantee shall expire no later than the [insert number] day of [insert month] [insertyear], 6 and any demand for payment under it must be received by us at this office on or beforethat date.56The Bank shall insert the amount(s) specified in the SCC and denominated, as specified in the SCC, either inthe currency(ies) of the Contract or a freely convertible currency acceptable to the Purchaser.Dates established in accordance with Clause 18.4 of the General Conditions of Contract (“GCC”), takinginto account any warranty obligations of the Supplier under Clause 16.2 of the GCC intended to be securedby a partial Performance Guarantee. The Purchaser should note that in the event of an extension of the timeto perform the Contract, the Purchaser would need to request an extension of this Guarantee from the Bank.Such request must be in writing and must be made prior to the expiration date established in the Guarantee.In preparing this Guarantee, the Purchaser might consider adding the following text to the Form, at the endof the penultimate paragraph: “We agree to a one-time extension of this Guarantee for a period not toexceed [six months] [one year], in response to the Purchaser’s written request for such extension, suchrequest to be presented to us before the expiry of the Guarantee.”3-26

Bidding Documents for ESB-02Part 3 – ContractSection VIII. Special Conditions of ContractThis guarantee is subject to the Uniform Rules for Demand Guarantees, ICC Publication No.458, except that subparagraph (ii) of Sub-article 20(a) is hereby excluded.[signatures of authorized representatives of the bank and the Supplier]3-27

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsPerformance SecurityOption 2: with relinquishing the Clause 1832 of Indonesian Civil Law[The bank, as requested by the successful Bidder, shall fill in this form in accordance with theinstructions indicated]Date: [insert date (as day, month, and year) of Bid Submission]ICB No. and title: [insert no. and title of bidding process]Bank’s Branch or Office: [insert complete name of Guarantor]Beneficiary: [insert complete name of Purchaser]PERFORMANCE GUARANTEE No.:[insert Performance Guarantee number]We have been informed that [insert complete name of Supplier] (hereinafter called "theSupplier") has entered into Contract No. [insert number] dated [insert day and month], [insertyear] with you, for the supply of [description of Goods and related Services] (hereinaftercalled "the Contract").Furthermore, we understand that, according to the conditions of the Contract, a PerformanceGuarantee is required.At the request of the Supplier, we hereby irrevocably undertake to pay you any sum(s) notexceeding [insert amount(s 7 ) in figures and words] upon receipt by us of your first demand inwriting declaring the Supplier to be in default under the Contract, without cavil or argument,or your needing to prove or to show grounds or reasons for your demand or the sum specifiedtherein.This Guarantee shall expire no later than the [insert number] day of [insert month] [insertyear], 8 and any demand for payment under it must be received by us at this office on or beforethat date.78The Bank shall insert the amount(s) specified in the SCC and denominated, as specified in the SCC, either inthe currency(ies) of the Contract or a freely convertible currency acceptable to the Purchaser.Dates established in accordance with Clause 18.4 of the General Conditions of Contract (“GCC”), takinginto account any warranty obligations of the Supplier under Clause 16.2 of the GCC intended to be securedby a partial Performance Guarantee. The Purchaser should note that in the event of an extension of the timeto perform the Contract, the Purchaser would need to request an extension of this Guarantee from the Bank.Such request must be in writing and must be made prior to the expiration date established in the Guarantee.In preparing this Guarantee, the Purchaser might consider adding the following text to the Form, at the endof the penultimate paragraph: “We agree to a one-time extension of this Guarantee for a period not toexceed [six months] [one year], in response to the Purchaser’s written request for such extension, suchrequest to be presented to us before the expiry of the Guarantee.”3-28

Bidding Documents for ESB-02Part 3 – ContractSection VIII. Special Conditions of ContractWith reference to Clause 1832 of the Indonesian Civil Law (Kitab Undang-Undang HukumPerdata) herewith we reaffirm that the Guarantor shall relinquish the special rights of claim onassets belonging to the Principal and for seizure and sale of such assets for the discharge of hisdebts as required in Clause 1831 of the Indonesian Civil Law.[signatures of authorized representatives of the bank and the Supplier]3-29

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsBank Guarantee for Advance PaymentOption 1: with following the rules of ICC No.458[The bank, as requested by the successful Bidder, shall fill in this form in accordance with theinstructions indicated.][bank’s letterhead]Beneficiary: [insert legal name and address of Purchaser]Date: [insert date (as day, month, and year) of Bid Submission]ICB No. and title: [insert number and title of bidding process]ADVANCE PAYMENT GUARANTEE No.: [insert Advance Payment Guarantee no.]We, [insert legal name and address of bank], have been informed that [insert complete nameand address of Supplier] (hereinafter called "the Supplier") has entered into Contract No.[insert number] dated [insert date of Agreement] with you, for the supply of [insert types ofGoods to be delivered] (hereinafter called "the Contract").Furthermore, we understand that, according to the conditions of the Contract, an advance is tobe made against an advance payment guarantee.At the request of the Supplier, we hereby irrevocably undertake to pay you any sum or sumsnot exceeding in total an amount of [insert amount(s) 9 in figures and words] upon receipt byus of your first demand in writing declaring that the Supplier is in breach of its obligationunder the Contract because the Supplier used the advance payment for purposes other thantoward delivery of the Goods.It is a condition for any claim and payment under this Guarantee to be made that the advancepayment referred to above must have been received by the Supplier on its account [insertnumber and domicile of the account]This Guarantee shall remain valid and in full effect from the date of the advance paymentreceived by the Supplier under the Contract until [insert date 10 ].9The bank shall insert the amount(s) specified in the SCC and denominated, as specified in the SCC, either in the currency(ies) of the Contract or afreely convertible currency acceptable to the Purchaser.10Insert the Delivery date stipulated in the Contract Delivery Schedule. The Purchaser should note that in theevent of an extension of the time to perform the Contract, the Purchaser would need to request an extensionof this Guarantee from the bank. Such request must be in writing and must be made prior to the expirationdate established in the Guarantee. In preparing this Guarantee, the Purchaser might consider adding thefollowing text to the Form, at the end of the penultimate paragraph: “We agree to a one-time extension ofthis Guarantee for a period not to exceed [six months][one year], in response to the Purchaser’s writtenrequest for such extension, such request to be presented to us before the expiry of the Guarantee.”3-30

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsThis Guarantee is subject to the Uniform Rules for Demand Guarantees, ICC Publication No.458._____________________[signature(s) of authorized representative(s) of the bank]3-31

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsBank Guarantee for Advance PaymentOption 2: with relinquishing the Clause 1832 of Indonesian Civil Law[The bank, as requested by the successful Bidder, shall fill in this form in accordance with theinstructions indicated.][bank’s letterhead]Beneficiary: [insert legal name and address of Purchaser]Date: [insert date (as day, month, and year) of Bid Submission]ICB No. and title: [insert number and title of bidding process]ADVANCE PAYMENT GUARANTEE No.: [insert Advance Payment Guarantee no.]We, [insert legal name and address of bank], have been informed that [insert complete nameand address of Supplier] (hereinafter called "the Supplier") has entered into Contract No.[insert number] dated [insert date of Agreement] with you, for the supply of [insert types ofGoods to be delivered] (hereinafter called "the Contract").Furthermore, we understand that, according to the conditions of the Contract, an advance is tobe made against an advance payment guarantee.At the request of the Supplier, we hereby irrevocably undertake to pay you any sum or sumsnot exceeding in total an amount of [insert amount(s) 11 in figures and words] upon receipt byus of your first demand in writing declaring that the Supplier is in breach of its obligationunder the Contract because the Supplier used the advance payment for purposes other thantoward delivery of the Goods.It is a condition for any claim and payment under this Guarantee to be made that the advancepayment referred to above must have been received by the Supplier on its account [insertnumber and domicile of the account]11The bank shall insert the amount(s) specified in the SCC and denominated, as specified in the SCC, either inthe currency(ies) of the Contract or a freely convertible currency acceptable to the Purchaser.3-32

Bidding Documents for ESB-02Part 3 – ContractSection IX. Contract FormsThis Guarantee shall remain valid and in full effect from the date of the advance paymentreceived by the Supplier under the Contract until [insert date 12 ].With reference to Clause 1832 of the Indonesian Civil Law (Kitab Undang-Undang HukumPerdata) herewith we reaffirm that the Guarantor shall relinquish the special rights of claim onassets belonging to the Principal and for seizure and sale of such assets for the discharge of hisdebts as required in Clause 1831 of the Indonesian Civil Law._____________________[signature(s) of authorized representative(s) of the bank]12Insert the Delivery date stipulated in the Contract Delivery Schedule. The Purchaser should note that in theevent of an extension of the time to perform the Contract, the Purchaser would need to request an extensionof this Guarantee from the bank. Such request must be in writing and must be made prior to the expirationdate established in the Guarantee. In preparing this Guarantee, the Purchaser might consider adding thefollowing text to the Form, at the end of the penultimate paragraph: “We agree to a one-time extension ofthis Guarantee for a period not to exceed [six months][one year], in response to the Purchaser’s writtenrequest for such extension, such request to be presented to us before the expiry of the Guarantee.”3-33